HL Deb 07 April 1982 vol 429 cc236-51

12.13 p.m.

Report received.

Clause 1 [Advice and assistance by duty solicitors]:

The Lord Chancellor moved Amendment No. 1: Page 1, line 8, leave out from ("and") to ("by") in line 9 and insert ("representation to which this section applies is provided").

The noble and learned Lord said: My Lords, in moving Amendment No. 1 I should like to speak also to Amendments Nos. 2, 3, 4, and 7. These are drafting amendments designed to meet the point raised in Committee by, I believe, the noble and learned Lord, Lord Elwyn-Jones, that the use of the phrase "advice and assistance (including assistance by way of representation) "might lead to confusion with the so-called "green form scheme". The amendments make it clear that advice and representation under Clause 1 is separate from "legal aid" and "advice and assistance". I beg to move.

Lord Elwyn-Jones

My Lords, I am grateful to the noble and learned Lord, the Lord Chancellor, for putting down these amendments to give effect to an undertaking and promise he made at Committee stage to eliminate the possibility of confusion between the "green form scheme" and what is contemplated in the clause. We are most grateful that these amendments have been made.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment Nos. 2, 3 and 4:

Page 1, line 12, leave out ("giving advice and assistance") and insert ("providing advice and representation").

Page 1, line 14, leave out from ("and") to ("in") in line 15 and insert ("representation").

Page 1, line 17, leave out ("assistance") and insert ("representation").

The noble and learned Lord said: My Lords, I should like to move Amendments Nos. 2, 3 and 4 en bloc as being consequential amendments.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 5: Page 2, line 6, at end insert ("and such number of other additional members nominated by him (not being barristers or solicitors) as he may direct.").

The noble and learned Lord said: My Lords, in moving Amendment No. 5 I should like to speak also to Amendment No. 6. The amendments are intended to give effect to an undertaking I gave in Committee when we discussed an amendment moved by the noble Lord, Lord Mishcon. I believe it is generally accepted that lay members can make an invaluable contribution in the field of legal services. This amendment will enable them to do so in connection with duty solicitor schemes. The amendments enable a number of additional members to be varied in the light of experience, at the direction of the Lord Chancellor of the day. I beg to move.

Lord Mishcon

My Lords, in again expressing gratitude to the noble and learned Lord the Lord Chancellor for moving these two amendments, may I remind him that I ventured to put the word "practising" before "barristers or solicitors" because one knows how many people have been called to the Bar and who honour another calling or commercial occupation thereafter. It would seem to be a shame to prevent either a non-practising barrister or solicitor from being a member.

The Lord Chancellor

My Lords, my father used to say that many are called to the Bar but few are chosen. I will certainly bear in mind what has just been said by the noble Lord, Lord Mishcon.

Baroness Macleod of Borve

My Lords, may I ask my noble and learned triend if it is envisaged that the other people whom he will nominate will have court experience—in other words, that they will be magistrates, clerks, or people like that? I believe it would be helpful to have such people rather than those who are completely outside the legal system.

The Lord Chancellor

My Lords, I believe that is a consideration. I do not think it is envisaged that they should all have court experience, but I see no reason why that should not be included.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 6: Page 2, line 12, at end insert ("and such number of other additional members (not being barristers or solicitors) as the Lord Chancellor may direct.").

The noble and learned Lord said: My Lords, this is a consequential amendment. I beg to move.

Lord Elwyn-Jones

My Lords, perhaps I may raise an additional point, and I hope that I am not out of order in doing so? The noble and learned Lord the Lord Chancellor may recollect that we raised the question as to whether "magistrates' courts" included juvenile courts. The noble and learned Lord was good enough to write to tell me that he was ensuring that magistrates' courts did include juvenile courts. It may well be that they do, but this is not apparent to this unlearned mind.

The Lord Chancellor

My Lords, I am in fact obliged to the noble Lord for reminding me of this point. In speaking to the first series of amendments, I ought to have said that Yes, magistrates' courts do include juvenile courts. I do not know about being "unlearned"; one has to have these cross-references and I can only look this point up, but I am advised that juvenile courts are included.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 7: Page 2, line 20, leave out ("assistance given") and insert ("representation provided.").

The noble and learned Lord said: My Lords, Amendment No. 7 is consequential on Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Lord Elwyn-Jones moved Amendment No. 8:

Page 2, line 20, at end insert—

("(7) Provision may be made by regulations for enabling the Lord Chancellor to direct, in respect of any magistrates' court at which solicitors attend pursuant to arrangements made under subsection (1) above, that the court shall provide reasonable facilities for such solicitors to give advice and assistance.")

The noble and learned Lord said: My Lords, this matter was raised at Committee stage. It relates to the provisions for facilities for duty solicitors to function in magistrates' courts. Anxiety was expressed at Committee stage that certain magistrates' courts were refusing, if that is the right word, or certainly not encouraging duty solicitor schemes. The noble and learned Lord was kind enough to write to me concerning the position in two of the courts which were mentioned in Committee—Marlborough Street and West London. It appears that voluntarily, and no doubt generously, solicitors in that area operating in that court do in practice operate the equivalent of duty solicitors' schemes. I do not in any way wish to suggest that those so generously providing assistance in that way do that work unsatisfactorily, but nevertheless I think there is a case for having the power to enforce duty solicitors' schemes in the provisions of the Bill.

The Law Society have animadverted upon this point and they say that they consider it is essential that the Bill should contain some provision to deal with the problem of courts which resist the introduction of duty solicitors' schemes, so that there should be power hereafter, if those, so to speak, unofficial informal arrangments are to operate satisfactorily.

There is a good deal to be said, I should have thought, for the duty solicitors' scheme retaining its own integrity as an independent scheme, to ensure that uniform and appropriate standards are maintained by those performing the important duties of duty solicitors, which, as I think we agreed in Committee, form a valuable new addition to the whole complex of protecting the citizen brought before the courts on a criminal charge from being lost and at sea. Therefore, perhaps the noble and learned Lord will be prepared to give further thought to this point, which I think is important and worth embodying in this Bill as it goes through Parliament. I beg to move.

The Lord Chancellor

My Lords, I certainly will give further consideration to this. I do not think it will do quite as the noble and learned Lord has moved it. This has proved a little more troublesome than I hope it was going to be. I have, of course, been in touch with the two courts in question, and they feel very strongly that they can always call on a solicitor already in attendance at the court to advise, and if necessary represent, a defendant who would otherwise go unrepresented. They say that that provides a better service to defendants because the solicitors concerned are highly competent, and at a lower cost because the solicitors concerned are not paid for the work. There is a powerful argument the other way. It may well not be thought satisfactory that an unrepresented defendant's access to legal advice should depend upon the court recognising that the individual defendant needs legal advice. I think that that is a valid point.

With regard to the facilities, of course, I am not, by one of the curious quirks of this business, responsible for the actual physical provision of magistrates' courts, and it would be necessary, although I think undesirable, for duty solicitors to take the facilities of the court as they find them. What is important is that they should be given access to the cells in order to confer with their clients.

The amendment itself is defective because it would appear to apply only where solicitors attend court pursuant to a scheme and to ensure that when they attend they are given facilities, but in fact, of course, the point really is that there should be available duty solicitors' schemes. The amendment does not as drafted deal with the case where they are not allowed to attend at all It may be that that is the more important point. However, the noble and learned Lord has put his case very reasonably, and I am in sympathy with it. I will give it further thought, as asked.

Lord Elwyn-Jones

My Lords, I am most grateful to the noble and learned Lord. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Legal aid for committal proceedings and trial]:

12.23 p.m.

Lord Gifford moved Amendment No. 9: Page 2, line 31, at end insert— ("(3) Provision may be made by regulations for the fees and expenses payable to a solicitor or barrister under a legal aid order made by virtue of this section in respect of work done before the defendant is committed for trial to be assessed and paid after the conclusion of the proceedings before the magistrates' court.")

The noble Lord said: My Lords this amendment is in similar form to one which I moved at Committee stage, except that it provides for a discretionary provision rather than a mandatory provision for regulations, to take account of a matter which was mentioned in Committee; that is to say, that real difficulties could arise from the operation of the new through orders if the barristers and solicitors who have been doing work prior to the committal of the case from the magistrates' courts cannot be paid until the legal aid order has run its course at the end of the Crown court proceedings.

The noble and learned Lord in Committee accepted that this was a good point and said that he was trying to find ways of getting over these difficulties. It may be—I know not—that ways can be found without the need for legislation. The purpose of my amendment is to give the opportunity to the noble and learned Lord to report to us on any success he has had in finding ways of getting over the difficulties which we all accepted were there. I beg to move.

The Lord Chancellor

My Lords, I am grateful to the noble Lord, Lord Gifford, for raising this problem again. Strictly speaking, I do not need the powers which are provided by the amendment, because I have already got them under Section 39 of the Legal Aid Act 1974. I should like to repeat what I said in Committee: that really I do not want to penalise financially lawyers acting under the so-called through legal aid orders by comparison with lawyers acting under separate legal aid orders. However, it is desirable that at the end of the Crown court proceedings the taxing officer should be able to look at all the work done, including pre-commital work.

Moreover, the amendment also, probably unintentionally, covers any preparation for the Crown court trial undertaken before the committal. One of the main reasons for the through order is to allow early preparation for the Crown court, but it would be inappropriate for such work to be taxed separately from the other work done for the Crown court proceedings.

It is fair to say that various solutions are being considered after discussions with the profession, but it is unlikely that the conventional assessment straight after the committal proceedings, as the amendment envisages, would be the most suitable outcome, since it would not meet all the objectives I have put forward. Although the power which the amendment would give does not have to be exercised, it could well be seen as implying a limitation to the generality of the powers that I already have to make suitable provision.

My Lords, I do assure the noble Lord that I am not unsympathetic to this, and I hope that the profession will keep up their discussions with me. I have got the powers to deal with it if a suitable answer can be found.

Lord Gifford

My Lords, I am most grateful to the noble and learned Lord for that further assurance that this matter is well and truly on the discussion table. I certainly do not wish to press the matter further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

12.30 p.m.

The Lord Chancellor moved Amendment No. 10: After Clause 2, insert the following new clause:

("Legal aid for proceedings following partly suspended sentence

In section 30(12) of the principal Act (meaning of "dealt with" in provisions describing proceedings for which legal aid may be given) after the words "the Powers of Criminal Courts Act 1973" there shall be inserted the words "or section 47(3) of the Criminal Law Act 1977".").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 10. This is a new clause. It enables the court to grant legal aid to a person who appears before it to be dealt with after committing an offence during the operational period of a partly suspended sentence. As your Lordships will have noticed from the press, Section 47 of the Criminal Law Act 1977, which provides for partly suspended sentences, came into force on 29th March. This, therefore, fills a gap in the powers of the court to grant legal aid. I hope that it is not contentious in any way. I beg to move.

Lord Elwyn-Jones

My Lords, we welcome this amendment.

On Question, amendment agreed to.

Lord Elwyn-Jones moved Amendment No. 11: After Clause 2, insert the following new clause:

("Appeals against refusal of legal aid.

.—(1) An appeal shall lie against the refusal by a magistrates' court to make a legal aid order under section 28(2) of the principal Act.

(2) Provision shall be made by regulations as to the manner of making appeals under this section, and by whom such appeals shall be heard, and the time when such appeals shall be made and disposed of.")

The noble and learned Lord said: My Lords, I beg to move Amendment No. 11. We discussed this important matter in Committee. It relates to the desirability, as I submit is the case, that there should be the possibilities of an applicant for legal aid being able to appeal against the refusal by a magistrates' court of such application. We noted the lack of uniformity in the "award"—if that is the right word—of legal aid in different magistrates' courts. I did—and we did, I think—appreciate the difficulty of defining the appropriate form of appeal. I think that the general view that seemed to be emerging in Committee was that some form of appeal was desirable. That is why the amendment that appears in the names of my noble friends and myself is in such broad terms.

Subsection (1) provides for an appeal and says: An appeal shall lie against the refusal by a magistrates' court to make a legal aid order". but then subsection (2) says: Provision shall be made by regulations as to the manner of making appeals under this section, and by whom such appeals shall be heard, and the time when such appeals shall be made and disposed of". So we have endeavoured in our draft to leave the position open for the further consideration of the noble and learned Lord the Lord Chancellor in providing some suitable machinery.

I understand that the Law Society is also firmly committed to the concept of a review or appeal procedure, but also agrees that we were not in a position precisely to describe the form of the appropriate procedure. But it may well be that there is some good news that the noble and learned Lord is able to give us on this point. I beg to move.

The Lord Chancellor

My Lords, I have no good news yet at any rate—so that is the bad news first. I continue to be concerned about this matter. I do see that there is a point here. There are certain difficulties that I want to stress. A very great deal of the work which goes before these petty sessional courts is extremely trivial in nature. I do not want either to divert resources from providing service to those who are, in fact, entitled to legal aid or to give persons with relatively trivial cases an opportunity to delay matters with the result of blocking the business in the courts. But I recognise that there is a point and I am certainly concerned, as I said, I think, in Committee, with the apparently rather startling divergencies in the crude rates of grant and refusal before petty sessional courts. There may, as I said then, be reasons for it which are more respectable than appear at first sight. I think that that probably can be dealt with by more precise guidelines to the court than by this particular method.

I think that if there were regulations—if that were to be the outcome of my further consideration—it is right that I should have a power rather than a duty to make regulations. I suppose that one would have to give consideration to the limitation of the range of offence to which the appeal would apply—for instance, either way offences. Undoubtedly to the extent that appeal is given, it adds to the administrative expense and, therefore, under the rather limited budget on which Lord Chancellors have to operate, it probably comes off the actual service which is provided to those who need legal aid and also, of course—although I say it sotto voce, as it were—the remuneration available to the profession for doing the work. But I shall undertake to give the matter still further consideration and, if possible, I shall give a more considered view on Third Reading.

Lord Mishcon

My Lords, I am sure that we are grateful, as always, for the noble and learned Lord's promise of further consideration. I must say that my noble friends and I are in some difficulty in regard to this, because I tried so hard to detect, from the always so clear remarks of the noble and learned Lord, an opinion that, indeed, an appeal procedure would be necessary, and it was purely the method and possibly the economy of thinking out that appeal procedure which was exercising his mind.

I must say on behalf of my noble friends and myself that we regard an appeal procedure, whatever it be, as being of the utmost necessity if justice is to be given to people to whom this matter of legal aid in criminal matters is of such great importance. The noble and learned Lord has already touched upon the diversity of treatment in the courts and has talked about guidelines. Therefore, I shall not bore the House by quoting a very positive paragraph in the memorandum of the Law Society as to their researches into these divergencies and the concern that those divergencies give them in the cause of justice.

I would only ask the noble and learned Lord whether he could go a little further than he has already gone in saying that he realises that some appeal procedure is necessary and that it is purely a question—if I may repeat myself for a moment—of the precise nature of that appeal, the body to whom the appeal can he made and making the matter of an appeal as economical as possible.

The Lord Chancellor

My Lords, I always forget what the rules are, but I think I can only reply by leave of the House. At any rate, I do not think that I can go as far as the noble Lord has asked me to go. I cannot go further than saying that I would like to do something about it. I am not quite sure whether it will turn out to be possible, but we can revert to this matter at Third Reading in this House and I would suggest that that is the best thing that we can do. I do not want either to be intransigent, but I am slightly baffled because I am finding this a rather intractable problem.

Lord Elwyn-Jones

My Lords, as the noble and learned Lord has said, this is a difficult problem and we shall return to it again at Third Reading. It may well be that in the interval of the happy Easter, which it may be, the mind of the noble and learned Lord will move into positive channels of co-operation on this difficult issue. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Legal aid contribution orders]:

12.39 p.m.

Lord Gifford moved Amendment No. 12:

Page 3, line 36, after ("paid") insert—

("(a) by such immediate payment on account of the contribution as the court making the legal aid order may in all the circumstances think reasonable; (b) after the conclusion of the relevant proceedings,").

The noble Lord said: My Lords, I beg to move Amendment No. 12. This amendment is in the same terms as the amendment which I moved at the last stage, and it was, I think, the only one of the amendments moved from this side of the House which failed to evoke any favourable response from the noble and learned Lord. However, I make no apology for raising the matter again, because of all the provisions in the Bill I think that these clauses, concerning the new arrangements for contribution orders, are going to have the most serious consequences of all, and will result in injustice.

Before dealing with the amendment, I should like to sketch out how these new arrangements will apparently work. In connection with this I received a letter, for which I am most grateful, from the noble and learned Lord, in which he indicated how the contribution system is expected to work when the regulations are published. It will be very much like the present civil legal aid scheme. That means that when someone applies for legal aid, his means will be assessed and he will then, before the legal aid is granted, be subject to an order to pay sums of money. In the case of people who have capital resources, anything over the rather low sum of £1,310 will be taken into account and they will have to pay it, there and then, for their legal aid, because that is how the civil legal aid scheme works at the moment.

People without capital resources but with sufficient income to require a contribution, will have to pay by instalments, which the noble and learned Lord informed me would be either weekly or monthly, over six or twelve months, with the same method of assessment being used as for the civil legal aid scheme. But this means, for instance, that someone with a take-home pay of £100 a week, with two children and a rent of £25, would be required to pay something like £250 for legal aid, which in some cases would of course exceed the cost of his defence in a magistrates' court hearing.

When it comes to the operation of this scheme in detail there are a number of aspects—five in all—from which I think we can look at it, and from whatever aspect it creates more problems than it is designed to solve. First, let us look at it from the aspect of the person who is offered legal aid. In the civil legal aid scheme many people who are offered legal aid turn down the offer because they think that it is not worth paying the contribution. That is their right, and in the civil scheme it may not work so much hardship.

But things are different when you are on a criminal charge. There will be defendants facing criminal charges who will say, when they are asked to pay a large sum from their capital assets or from their income, "I cannot afford this; I'll take the risk of being unrepresented". They will represent themselves and may be found guilty, whereas if they had received legal aid, they could have had a proper defence and perhaps been found not guilty. Alternatively, in the case of someone who is asserting his innocence on a charge, he will find that there may be a substantial contribution to be made and will say to himself and to his solicitor, "If I plead guilty, the cost will be much less". It will be a real deterrent in many cases which will prevent people from being defended in circumstances when they ought to be defended, or will create a pressure on them to take the cheapest way of defending themselves in order to avoid immediately having to pay out so much money.

The second aspect from which we can look at it is from the point of view of the administration of the court. The court will have, first, to make an assessment. It cannot be a rough and ready assessment, as happens at the moment; it will have to be an accurate assessment. There will be many difficulties; in the case, for instance, of self-employed people of establishing precisely what is their income. There will be problems with people whose capital assets are in valuables or insurance policies, all of which have to be brought into account.

At present with the civil legal aid scheme it can take a number of months for the assessment accurately to be made. Then the court will have to administer the instalments, and if they are to be weekly that will be a considerable burden; even monthly, it will be a burden. If people are late with their instalments, the court will be in a position either of having to send them reminders or of making references to the magistrates or the judge, so that the question of revocation can be considered. There will be a vast amount of bureaucracy and paperwork.

When the case comes to trial the judge or the magistrates will need to know exactly what instalments have been paid and what instalments have not been paid in order to be able to exercise their powers of repayment or of remission of legal aid contributions. If the defendant is acquitted, then all this money, which has laboriously been paid, will have to be paid back again. These are new functions, or, if they are not entirely new in principle, they will be much more burdensome under the new arrangements.

The third aspect is that of the revocation of the legal aid orders when the instalments are not paid. The dishonest defendant will calculate that he can get away with not paying his instalments. He may say to himself, "If I am acquitted, I'll get the money back. If I am convicted, I'll be sent to prison or I will lose my job, and I shall not have any money to pay anyway". It will then be left to the court to consider whether, on the one hand, on the morning of the case they revoke the legal aid order, when solicitor and council are there all prepared and ready to help the court—as they do, by representing the client—or whether they acquiesce in the failure of the defendant to have paid the legal aid instalments. That will mean that the dishonest or the unscrupulous will get away with not paying their instalments and the honest will have gone through the financial hardship of finding the money month by month or week by week. Even upon the honest there will be considerable pressures and, indeed, difficulties for their legal advisers.

When someone has stolen a sum of money or caused damage, during the period of waiting before the trial date one frequently advises the client to put aside money to compensate the victim. But what will be more important now—to put aside money for the legal aid contributions or to put aside money to contribute to the victim? I would certainly want to advise a client to put the victim first and to find the legal aid money, if he has to, later.

Fourthly, there is the position of the trial judge or the magistrates at the end of the case. At present the judge or the magistrates have a general discretion either to order or not to order a legal aid contribution and, when they order it, to limit the amount which has to be paid. The difficulty of the provisions of the Bill is that they substantially take away that discretion, because they impose the contribution at the very beginning. Again, there will be unfairness. Under the Bill there is a residual discretion in the court to remit contributions if they have not yet been paid. That will mean that you could have all sorts of anomalies depending on whether a particular defendant, in compassionate circumstances, has paid or has not paid his or her contribution.

What those of us who are questioning the virtues of this new arrangement are saying is: why not leave it with the court to assess the overall position at the end of the case? The fines have to be paid at the end of the case: the prosecution's costs have to be paid at the end of the case; why not the legal aid contribution order, if the court thinks that that is just in the light of all circumstances? It may have looked very neat as a system to try to get the contributions in quickly; in practice, it will be unfair and unworkable.

Finally, one looks at it from the point of view of the Exchequer, because the overall case made by the noble and learned Lord for this Part of the Bill was that it would get in money at an earlier stage and, in particular, would get in money which might not be got in if, for instance, the person given legal aid was convicted and sent to prison, or convicted and deprived of his employment as a result. I do not think that in practice there will be much revenue to the Exchequer from these new provisions.

There will be some people found guilty whose ability to make a legal aid contribution remains the same, both before and after their conviction. They stay in their job, or they have capital assets which can be drawn on whether or not they are found guilty. So far as they are concerned it is merely a question of when they have to pay. They will have to pay, they have the means to pay, and enforcement procedures can be used against them.

However, there is the other category of people who have been specifically referred to by the noble and learned Lord, those whose means change as a result of being convicted. For instance, those who have been imprisoned or who lose their job. Those who are sent to prison may, before going to prison, have had to pay a legal aid contribution while they were awaiting their trial. But you can be quite sure that all the income or capital which has been paid out while awaiting trial will have to be paid out by the state in supplementary benefit to the family of the person sent to prison, because that person and his family will have fewer assets.

There is another point. If someone loses his job or is sent to prison as a result of a conviction, the position really is that he should never have been required to pay in the first place. Take someone who is earning £5,000 a year and who is assessed for a contribution on that basis. If that person is convicted and sent to prison halfway through the year, his earnings for that year are only going to be £2,500 a year, and it is not fair that he should have had to pay a greater amount, based on the fact that he was then working when in fact his position, and the position of his whole family, may have changed drastically as a result of his being found guilty.

Even from the point of view of straight revenue calculation, taking into account all the bureaucracy involved, I do not see a case for these new contribution powers. Whatever the fate of this amendment, I appeal to the noble and learned Lord and to the profession to think again about the merits of this new system. It was, of course, a working group of the Law Society and the Bar which devised this scheme. I hope that those institutions are thinking again, and I appeal to them to think again, as to whether the scheme that they have devised will in fact work justice or injustice.

The amendment which is proposed by myself and my noble and learned friend and my noble friend reintroduces into this Bill the simplicity and the flexibility of the present scheme. It allows for flexi bility first of all in what sort of a down payment is initially ordered by the courts. It introduces flexibility into the overall amount which will have to be paid, not rigidly by instalments from the beginning, but at the end of the case, when the judge or the magistrates are able to assess the whole situation of the defendant. I apologise for having gone through this at some length, but the details of the provisions have not yet been sufficiently thought out, and I commend this amendment to your Lordships. I beg to move.

12.53 p.m.

The Lord Chancellor

My Lords, I do not think that the noble Lord need have apologised. He quite rightly appreciated that there is a wider difference between us on this amendment than on some of the others we have been discussing. He is quite right to put his case at length to the House. But I am bound to tell him, as he rightly said at a fairly late stage of his remarks, that the present arrangements, which would effectively be reintroduced with modification into the new system, have been criticised as being ineffective not only by my own department but by both branches of the legal profession. I am sure that the noble Lord's pleas to those branches will not go unheeded, but the collective wisdom of both branches of the legal profession when they agree is something not lightly to be disregarded.

I am bound to tell the noble Lord that our philosophy is of course that an acquitted defendant, whether he is assisted or not assisted, ought in the ordinary case to get his money back out of central funds after his acquittal, but we take the view that a person with means ought to be prepared to contribute to his own defence. I personally am not at all shocked by this conception.

The present arrangement provides for the down payment and is not very effective for various reasons, some of which have been explored either on Committee or now. I see nothing shocking about a system of contributions, and I do not see anything ineffective about it. The magistrates' courts in particular are constantly ordering contributions of one sort or another in cases of a criminal character or a quasi-criminal character. I am told that the associations in question—not only the two branches of the legal profession—do not anticipate any practical difficulties, and I personally believe that the noble Lord's fears are ungrounded.

The effect of the present amendment would be to remove the power for regulations to prescribe contributions to be paid by instalments from the date legal aid is granted. In its place the court would have very much the same powers as it now has to order a down payment at its discretion, but the remainder of the contribution would not be paid until the proceedings had been concluded, and ex hypothesi concluded against the defendant, which is not to me particularly attractive. By virtue of Clause 5(5) of the Bill, the court would be able to remit the whole contribution, apart from any down payment, whatever the result of the proceedings.

The system, of course, as the noble Lord, Lord Gifford, has indicated, is largely modelled on the civil scheme. I must tell him that I acquit him of any intention to mislead. The process of assessment will be much simpler, and therefore will not go through the various processes. It has been suggested—in fact, I think I heard the noble Lord suggest it—that a defendant in a criminal case is very different from the party to civil litigation because he has no choice whether or not to continue with the case. I think that is perhaps a little stark in its contrast. In a technical sense that may be true, but it certainly is not right to assume that the outcome of civil proceedings is always less important to the individual concerned than the outcome of criminal proceedings. Take, for instance, a tenant defending his landlord's application for a possession order. He might very well feel that he has more at stake than a defendant in a criminal case charged with failing to pay his train fare, whatever his motives might have been.

In any event, the fact that defendants cannot opt out of proceedings does not mean that they should be exempted from contribution, nor that contribution should be postponed. It does mean that we must take great care to ensure that contributions are fixed at a level which the defendant can reasonably be expected to afford. The regulations made under the Bill will, I trust and believe, ensure that this is done.

I believe the noble Lord suggested—if I misunderstood the argument it is my fault and not this—that some rather sophisticated defendants would disrupt the system by deliberately not paying contributions which they could well afford, confident that legal aid would not be revoked because the charge they face is a serious one. I think if they did so they might be making a rather serious error. Courts will have power to revoke legal aid, and that is exactly the sort of case in which I would expect the power to be used. It does not represent an important change of principle from the present arrangements. Courts can already require a down payment, as I said, as a condition of granting legal aid, and it is not unknown for as much as £1,000 to be required as a down payment. If the defendant does not pay, he does not get the aid, and even defendants charged with murder can be refused legal aid if they have sufficient resources to pay for their own defence.

Personally, I should not have many qualms if defendants went unrepresented in serious cases because they deliberately refused to pay a contribution which they could afford. I hope and believe that that situation will not happen often, but I should not myself allow the possibility of it to lead me to retain a system which is both ineffective and to some extent unfair. The noble Lord, quite reasonably, apprehended that I would not be amenable on the amendment and I am afraid he was right. I hope he will not take offence at that; I am putting it as moderately as I can.

Lord Gifford

My Lords, on the basic principles there is no difference between the noble and learned Lord and myself. Nothing in the amendment strikes at the principle that persons with means should contribute to their defence. Equally, nothing in it strikes at the idea that in a proper case a substantial down payment should be ordered by the court. But the amendment would introduce a flexibility where the Bill introduces total rigidity in what has to be paid and at what time. It is sad that I am not making any inroads into the noble and learned Lord's thinking. I do not think there would be any point in returning to the matter on yet another occasion. I am certainly not satisfied and I do not wish to withdraw the amendment.

On Question, amendment negatived.

The Lord Chancellor

My Lords, I see my noble friend Lord Belstead suddenly arriving and I am wondering whether he has come here to answer the Private Notice Question, in which case, with the leave of the House, we will allow him to do so and proceed with the Legal Aid Bill afterwards.

The Minister of State, Foreign and Commonwealth Office (Lord Belstead)

If it is for the convenience of the House, my Lords, I am of course at the service of the House to answer a Private Notice Question.

Lord Denham

My Lords, it was agreed, I understand, that we should take the Private Notice Question immediately before the Unstarred Question, and there are three small items of business first.

The Lord Chancellor

My Lords, we will do what has been agreed.

The Lord Chancellor moved Amendment No. 13: Page 4, line 40, at end insert ("; and regulations made for the purposes of subsection (1) above shall secure that a person's disposable income is treated as not exceeding the prescribed limit at any time when he is in receipt of supplementary benefit under the Supplementary Benefits Act 1976 or of family income supplement under the Family Income Supplements Act 1970.").

The noble and learned Lord said: My Lords, we now come to Amendment Lucky No. 13, which ensures that an assisted person is not required to contribute from income towards his legal aid at any time when he is in receipt of supplementary benefit or family income supplement by requiring that the regulations made under Clause 4(1) shall contain a provision to that effect. The amendment protects the position of assisted persons who are in receipt of the main forms of income maintenance.

The noble Lord, Lord Gifford, suggested in Committee that persons in receipt of those benefits should not pay a contribution from capital either, but there is no capital limit for FIS, so it is theoretically at least possible for someone who can well afford to contribute from capital towards the cost of legal aid to receive FIS. To exempt such persons from making a contribution would he, in effect, to put them in a much more favourable position than those with equal capital resources but an income just above the level at which they could claim FIS. There will not be many people receiving FIS who will be liable to make a contribution from capital, but perhaps it might be thought that we should not establish a bad principle just because few would be affected by it. I beg to move.

Lord Gifford

My Lords, I am grateful to the noble and learned Lord for giving half a loaf in the amendment and accepting that those in receipt of supplementary benefit and family income supplement should not have to pay out of their disposable income for legal aid. I see that there are difficulties in the way of extending that to capital, but there is an anomaly and I am thinking particularly of the supplementary benefit regulations. Somebody with up to £2,000 in capital does not have to eat into it for the purposes of his assessment for supplementary benefit; it is only above that sum that the person is expected to use the capital. It is allowed, therefore, that people may keep, as it were, a limited nest-egg, even if they are on supplementary benefit. I wonder whether, when the regulations are being considered, some thought could be given to whether, for the purposes of criminal legal aid, in order to mitigate what will not be such a rare case of somebody on supplementary benefit with a limited amount of capital (in the form of money, insurance policies or valuables) having to pay perhaps for the whole of his legal defence, the capital limit should be rather higher than the £1,310 which the noble and learned Lord indicated it would be.

The Lord Chancellor

I shall reflect on what the noble Lord has said, my Lords. If one has to pay at the end of a case in which one has been unsuccessful, I have always thought—I am told I am rather unorthodox in this respect—that there is a good deal of flexibility if a monetary penalty is to be imposed in any event. My primary purpose is not to punish defendants but to protect the Legal Aid Fund so as to give a better service. Therefore, I am not wholly unfair in these matters. I can assure the noble Lord that I shall take on board what he said and, without commitment, reflect on it.

On Question, amendment agreed to.

Clause 6 [Enforcement of legal aid contribution orders]:

The Lord Chancellor moved Amendment No. 14: Page 6, line 46, at end insert ("but shall not do so without first affording the legally assisted person an opportunity of making representations in such manner as may be prescribed.").

The noble and learned Lord said: My Lords, this requires the court to give the assisted person an opportunity to make representations before revoking legal aid for non-payment of contribution. The method of making representations will be prescribed in regulations. I think this is an improvement, and I hope others will think so, too.

Lord Elwyn-Jones

It is an improvement, my Lords. We raised the point in Committee and we are grateful that the amendment has been tabled.

On Question, amendment agreed to.

Clause 11 [Consequential amendments and repeals]:

The Lord Chancellor moved Amendment No. 15:

Page 9, line 18, at end insert— ("( ) In paragraph 1 of Schedule 3 to the principal Act (enforcement of legal aid contribution orders) for the words "have the same meanings as in section 32 above" there shall be substituted the words "have the same meanings as in Part II of this Act".").

The noble and learned Lord said: My Lords, this is a formal amendment which corrects the reference to "contribution order" in Schedule 3 to the 1974 Act so as to take account of the amendments to the Bill. I do not think I need say more in support of it.

On Question, amendment agreed to.

Clause 13 [Short title, interpretation, commencement and extent]:

The Lord Chancellor moved Amendment No. 16: Page 10, line 5, leave out ("assistance given") and insert ("representation provided").

The noble and learned Lord said: My Lords, this amendment is consequential on the changes in terminology made in Amendment No. 1. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 17: In the Title, line 2, leave out ("advice and assistance") and insert ("and the provision of advice and representation").

The noble and learned Lord said: My Lords, this amendment also is consequential on changes in terminology. I beg to move.

On Question, amendment agreed to.